Digital Commons Network^™

Role, Identity, And Lawyering: Empowering Professional Responsibility, Natasha Martin

Faculty Articles

This piece was written for a program held by the American Association of Law Schools Section on Law and Humanities, "Excavating and Integrating Law and Humanities in the Core Curriculum," on January 5, 2012.The Professional Responsibility course has the potential to have the greatest impact on our students' futures in the profession. Paradoxically, however, it remains one of the most undervalued courses in most law school curricula. The complexity of teaching Professional Responsibility is well documented by scholars. Most teachers in this area, novices and veterans alike, acknowledge the challenge of teaching a course whose subject matter and application is …

Suburban Poverty: Barriers To Services And Injury Prevention Among Marginalized Women Who Use Methamphetamine, Miriam W. Boeri, Benjamin Tyndall, Denise R. Woodall

Faculty Articles

Objective: This paper aims to identify the needed healthcare and social services barriers for women living in suburban communities who are using or have used methamphetamine. Drug users are vulnerable to injury, violence and transmission of infectious diseases, and having access to healthcare has been shown to positively influence prevention and intervention among this population. Yet little is known regarding the social context of suburban drug users, their risks behaviors, and their access to healthcare.

Methods: The data collection involved participant observation in the field, face-to-face interviews and focus groups. Audio-recorded in-depth life histories, drug use histories, and resource needs …

Legal Malpractice Litigation And The Duty To Report Misconduct, Vincent R. Johnson

Faculty Articles

Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …

Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis

Faculty Articles

The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.

State Courts And Constitutional Socio-Economic Rights: Exploring The Underutilization Thesis, Helen Hershkoff, Stephen Loffredo

Faculty Articles

The article focuses on the state constitutional socio-economic rights in the U.S. under the decisions of state courts. It analyzes the subnational underutilization thesis of state-constitutions related to protection of rights against the government and U.S. judicial enforcement of rights. It informs that the U.S. state courts use common law to develop remedial strategies for enforcement of the rights.

The Anticipation Misconception, Colin P. Marks

Faculty Articles

Many commentators and courts have cited to the Supreme Court decision of Hickman v. Taylor as the genesis of the work product doctrine and the requirement that, to be afforded protection, the material in question must be generated “in anticipation of litigation.” The oft quoted policy justification for the protection afforded is that attorneys should be allowed a “zone of privacy” within which to prepare their case for the client. This justification supports limiting protection only to work generated “in anticipation of litigation,” because, presumably, outside of this context there is no need for the “zone of privacy.” However, a …

Bias In The Classroom, One Degree Removed: The Story Of Turner V. Stime And Amicus Participation, Robert S. Chang

Faculty Articles

This article summarizes a recent amicus brief written by the Korematsu Center. It describes a Spokane, Washington medical malpractice case where juror racial bias toward a party’s attorney was used as direct evidence. It describes the momentum and mobilization of the amicus brief, and the success in the appellate courts. It is offered as a model for how law school clinics can engage in effective advocacy to help democratize the courts.

Neither A Model Of Clarity Nor A Model Statute: An Analysis Of The History, Challenges, And Suggested Changes To The “New” Article 120, Hon. Jack Nevin, Joshua R. Lorenz

Faculty Articles

No abstract provided.

Thinking About Technology – Standard Bar Codes Beware- Smart Phone Users May Prefer Qr Codes, Darla Jackson

Faculty Articles

Quick Response (QR) codes are free to produce, allow access to data, and can be read with most smartphones. QR codes are already popular in some other countries and are gaining popularity in the United States. This article discusses this growing popularity and the reasons for it, how QR codes are being used in law libraries and the legal profession, and how they may be used by librarians in the future to add value through the marketing of professional and library services and by providing easy access to information from library resources.

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Faculty Articles

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Faculty Articles

An essay is presented on the judicial power of the Supreme Court in the October 2008 term in the U.S. It mentions that the Court during this term made apparent the lack of serious theory and basis to justify and explain their decisions related to unconstitutionality of a statue. It also offers an analysis of the textual foundation of the power of the Court to conduct judicial review and the importance of five First Amendment cases decided during the 2008 term.

Taxing Structured Settlements, Gregg Polsky, Brant J. Hellwig

Faculty Articles

Congress has granted a tax subsidy to physically injured tort plaintiffs who enter into structured settlements. The subsidy allows these plaintiffs to exempt from the tax the investment yield imbedded within the structured settlement. The apparent purpose of the subsidy is to encourage physically injured plaintiffs to invest, rather than presently consume, their litigation recoveries. While the statutory subsidy by its terms is available only to physically injured tort plaintiffs, a growing structured settlement industry now contends that the same tax benefit of yield exemption is available to plaintiffs’ lawyers and non-physically injured tort plaintiffs under general, common-law tax principles. …

Antitrust And Institutions: Design And Change, Eleanor M. Fox

Faculty Articles

This paper is about comparative institutional design of competition law and policy systems, and the relationship of design to context. It is also about design and change. Jurisdictions need sound and thoughtful institutional design that will best help to advance their competition law and policy, and do so with transparency, fairness, and due process. Many designs may achieve these ends. This paper is not about available choices or global models. Rather, albeit selectively and anecdotally, it concerns the design choices that nations make. The paper has two parts. Part II refers principally to the initial choice of design. It reflects …

One Day, All Americans..: Considering A Tfa-Style Lawyer Corps, Gregory Zlotnick

Faculty Articles

This Note argues for the creation of a public interest recruiting and placement organization like Teach for America, in the tradition of Edgar and Jean Cahn's call for federally funded neighborhood legal services and TFA founder Wendy Kopp's call for the creation of a national teacher corps. Part I argues that such a recruiting and placement organization should be implemented now, in light of the constitutional and legal limitations of federally funded legal services; an excess supply of lawyers coupled with a disparity in those receiving legal services; cutbacks in public interest positions such as legal aid and public defender …

Finding And Incorporating Spirituality In The Work Of The Clinic, Ana M. Novoa

Faculty Articles

forthcoming

Lifting Burdens: Proof, Social Justice, And Public Assistance Administrative Hearings, Lisa Brodoff

Faculty Articles

In "Lifting Burdens: Proof, Social Justice, and Public Assistance Administrative Hearings," Lisa Brodoff describes the administrative hearing system for public assistance recipients and applicants, and asserts that it is the primary social justice system for the poor. She discusses why public assistance appellants are always placed at a significant disadvantage in this system. The article proposes that the best way to even out the inequities in adjudications is to always place the burdens of production and persuasion by clear and convincing evidence on the government in these hearings. She argues that policy, efficiency, and fairness require a consistent and heavy …

“Playing Chicken": An Instant History Of The Battle Over Exceptions To Client Confidentiality, Michael S. Ariens

Faculty Articles

The purpose of my essay Playing Chicken: An Instant History of the Battle over Exceptions to Client Confidentiality, is to offer a pointillist history of the recent battles between the ABA and the federal government concerning 1) when lawyers may or must disclose client confidences, and 2) claims that the federal government is attacking the attorney-client privilege. In doing so, I hope to explain how this battle is representative of the current drift in the American legal profession.

After the Introduction, the essay unfolds as follows: Section II traces the ABA’s often schizophrenic understanding of the duty of confidentiality and …

Way To Represent: The Role Of Black Lawyers In Contemporary American Democracy, Carla Pratt

Faculty Articles

The legal profession has articulated a commitment to racial diversity. This essay attempts to articulate the unique contribution that black lawyers make to the legal profession and the role black lawyers play in strengthening our democracy.

The Public Value Of Settlement, Samuel Issacharoff, Robert H. Klonoff

Faculty Articles

The article focuses on the claim of author Owen M. Fiss against the public value of civil settlement. It stresses the concern of Fiss on settlement in class actions and other aggregate cases. For Fiss, settlements are problematic due to some reasons including the plaintiffs' relative lack of power, the incapability of settlement to ensure ongoing court involvement, and the failure of settlement to achieve justice. Also emphasized is the tradeoff between the quotidian concern of dispute resolution for the minor annoyances of every life and the public values of the important cases.

The Aaml's Revised Standards For The Representation Of Children In Custody And Visitation Proceedings: The Reporter's Perspective, Martin Guggenheim

Faculty Articles

This article describes the Standards for the Representation of Children in Custody and Visitation proceedings recently promulgated by the American Academy of Matrimonial Lawyers. It also seeks to bring to life the remarkable politics of children’s representation, which came to a boil in recent years. In addition to describing the AAML Standards, the article also describes two other recent efforts to define the role of a child's lawyer, one by the Uniform Law Commission and the other by the American Bar Association and then tells the story of why both of those efforts ultimately failed to garner significant support in …

The Height Of Sophistication: Law And Professionalism In The City-State Of Charleston, South Carolina, 1670-1776, Wiiliam E. Nelson

Faculty Articles

In March 1663, Charles II granted a charter making a group of eight highly placed confidants proprietors of a new colony encompassing what is now most of North Carolina, South Carolina, and Georgia. Virginians had already begun settling the northeast corner of the new colony along the Albemarle Sound, and the proprietors immediately directed one of their number, Sir William Berkeley, who was also governor of Virginia, to establish a government for them. Over the remainder of the 1660s, however, two efforts to establish settlements further to the south, one by New Englanders and one by colonists from Barbados, failed. …

Trans Law Reform Strategies, Co-Optation, And The Potential For Transformative Change, Dean Spade

Faculty Articles

This paper considers two critiques of how law and rights struggles co-opt social movements and applies them to the example of the emergent law reforms in the area of transgender rights. First, it considers the limitations of the discrimination principle. Second, it looks at the emergent critique of "nonprofitization." Examining how the focus on formal legal equality and the growth of non-profit formations that centralize the concerns and experiences of white and upper class people have impacted gay and lesbian rights work, the paper suggests that these avenues present dangers to creating meaningful transformation of conditions facing trans population, including …

Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever

Faculty Articles

HIV/AIDS dramatically impacts domestic violence survivors' needs and demands reconceptualization of current responses to domestic violence. This article aims to illuminate the problem of domestic violence in the context of HIV/AIDS and to prompt further development of legal response systems. Specifically, this article brings together the worlds of law, public health, and women's lived experiences to argue for recognizing and responding to domestic violence in the context of HIV/AIDS in the United States. Utilizing accounts of clients' experiences and data from public health studies, this article sets forth eight categories of HIV/AIDS-related domestic violence: repercussions from partner notification, use of …

Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications, Bill Piatt, Paula Dewitte

Faculty Articles

Attorneys have an ethical obligation to protect their clients' confidences. Attorneys are required to consider what possibilities exist for unintended disclosure through technology, how they can adapt to these new realities to fulfill obligations of effective representation and maintenance of client trust and confidences, and how attorneys can employ a tripartite approach to information security to better protect client information. Under the general obligation to maintain confidentiality as set out in Rule 1.6 of the Model Rules of Professional Conduct, attorneys are precluded from revealing “information relating to the representation of a client.”

The legal profession has started to educate …

The Adversary System Is Dead: Long Live The Adversary System: The Trial Judge As The Great Equalizer In Criminal Trials, Mary Sue Backus

Faculty Articles

No abstract provided.

Process Innovation In The Production Of Corporate Law, Steven Cleveland

Faculty Articles

No abstract provided.

Virtual Clients: An Idea In Search Of A Theory (With Limits), Stephen Gillers

Faculty Articles

Lawyers owe professional obligations to clients and it is usually pretty easy to identify a lawyer's clients, but it is getting more difficult. In recent decades, courts have recognized duties to individuals or entities who are in no sense traditional clients. These duties might lead to liability or disqualification from a matter. This Article, which was given as the Tabor Lecture at Valparaiso University School of Law, identifies seven categories of "virtual clients" and tries to define each category, the justifications for it, and the consequences of virtual client status. It distinguishes other circumstances in which a lawyer may have …

Thompson/Mcnulty Memo Internal Investigations: Ethical Concerns Of The Deputized Counsel, Colin P. Marks

Faculty Articles

Outside counsel who conduct internal investigations for corporate clients have always faced ethical concerns, especially when interviewing employees. Generally, a carefully crafted blanket statement at the beginning of the interview explaining outside counsel's role was sufficient to address these concerns. However, recent charging policies adopted by the Department of Justice ("DOJ") have drastically changed the rules. These policies, articulated in what is now commonly referred to as the "Thompson Memo," after the author and then Deputy General Larry Thompson, allowed prosecutors to consider factors such as waivers of the attorney-client privilege and work-product protections and whether the company provides legal …

Urban Law School Graduates In Large Law Firms, David Wilkins, Ronit Dinovitzer, Rishi Batra

Faculty Articles

Two major trends have dominated the American legal profession in recent years. First, "the legal profession has seen a striking growth in the largest firms during the latter part of the last century." In 1960, Shearman Sterling & Wright (now called Shearman & Sterling) was the largest firm in the country - and therefore the world. It had 125 lawyers. By the close of the century, there were more than 250 firms larger than Shearman & Sterling had been forty years before, with the largest ten topping the scales at 1000 lawyers or more. Today, in order to make the …

The "Charles Stimson" Rule And Three Other Proposals To Protect Lawyers From Lawyers, Stephen Gillers

Faculty Articles

Lawyers can be “at the edge” for many different reasons. For purposes of this Article, I define “at the edge” to mean lawyers who for one of two reasons encounter risks of, or actual harm to, their career, freedom, physical safety, reputation, or income. The two reasons are the identity of the lawyer’s client, or the nature of the claim the lawyer is making in court, or both. Lawyers may also be at risk for tactics that bring sanctions. But that is a different kind of risk, a risk of crossing an ethical or legal boundary, and not part of …